CONGRESSIONAL NULLIFICATION. REMARKS MADE IN THE HOUSE OF REPRESENTATIVES, PRESIDENT HAYES vetoed the Legislative, Executive, and Judicial Appropriation Bill, May 29, 1879. A new bill bearing the same title was now brought forward, which omitted the appropriations for jurors and marshals. This bill carried no "riders"; it was passed by the almost unanimous votes of both houses, and was approved by the President, June 19. The appropriations for paying supervisors and deputy-marshals were put in a separate bill, called "Certain Judicial Expenses Bill," which contained the obnoxious features relative to those subjects. More specifically, it made no provision for executing Title 26 of the Revised Statutes, or any provision of said title. This title covers the appointment of deputy-marshals, their duties in relation to enforcing the election laws, their pay, etc. Mr. McMahon, of Ohio, who reported the bill, said the "political" features were "intended to prevent the enforcement of the supervisors and deputy-marshals clauses of the Revised Statutes during the next fiscal year, so far as a failure to appropriate money for their compensation will effect that purpose." It repealed Sections 820 and 821 of the Revised Statutes, and contained the old provision concerning jurors. The Republicans opposed the bill. While it was pending in the House, Mr. Garfield spoke on its several sections as follows. The later history of the measure is shown in the introduction to the next speech. MR R. CHAIRMAN,Those provisions of this bill which itemize the expenses of the courts are in the right direction, the direction of economy and a prudent regard for the safe disbursement of the public funds. I welcome them in this respect as in pursuance of a policy which we ought always to approve. 1 See McPherson's Political Hand-Book for 1880, p. 125. In so far as the bill creates unnecessary deficiencies, as has been stated by the gentleman from New York, it is objectionable. The fair and manly course for the House to pursue is to appropriate what is fully adequate, and no more, to meet the expenses of the current fiscal year. The opposite course has been frequently pursued by political parties; but, in the long run, it has been found unwise to make an apparent reduction of expenditures, knowing that the supplies withheld must be made up by subsequent deficiency bills. There is no real gain to any party in the end; and it is a bad way to manage the fiscal affairs of the government. I hope, therefore, whatever amendment this bill may need in that respect will be made, and that the full amount required for the actual service of the year will be added. In reference to the two clauses which have been referred to by the gentleman from New York, and which are found on pages 2 and 3 of the bill, I shall make a few observations. It is not a valid objection to the passage of an appropriation bill that it does not embrace all the objects for which appropriations should be made. We cannot justly vote against appropriations which are proper in themselves merely because the amounts are not large enough. But there is a clause at the end of the first section, which is something more than a mere omission to make a necessary appropriation. I read it "No part of the money hereby appropriated is appropriated to pay any salaries, compensations, fees, expenses, under or in virtue of Title 26 of the Revised Statutes." It is fair to inquire whether those statutes do not command the executive officers of the government to perform some positive duties, and whether by this clause we are not only neglecting to appropriate money, but are virtually nullifying the law by preventing its enforcement. If the clause which I have read stood alone, it would be less objectionable; but taken in connection with the second section, which I will read presently, it amounts to a legislative prohibition, for one year, to enforce the provisions of Title 26. The sections of that title are the laws which this House and the Senate have vainly tried to repeal, and have found they have not the constitutional power to do so. We were told, in the outset, that these laws should be repealed, or no appropriations would be made. But it has been 1 Mr. Hiscock. demonstrated to the most unobservant, that the present Congress is powerless to repeal these laws, and the attempt has been wisely abandoned. The chief amounts needed for the support of the civil departments were appropriated in the bill which we passed yesterday,1 with no provision for repealing or modifying the law; but now the Committee on Appropriations propose a bill by which, for the coming year, these laws shall be, not repealed, but not enforced, nullified. Now, gentlemen, that is only an indirect way of doing temporarily, for one year, what you have no constitutional authority to do absolutely and permanently. This provision ought to be stricken out. As I have already intimated, the clause to which I have referred draws its evil inspiration from the provisions of the second section, which I will now read: "That the sums appropriated in this act for the persons and public service embraced in its provisions are in full for such persons and public service for the fiscal year ending June 30, 1880; and no department or officer of the government shall, during said fiscal year, make any contract, or incur any liability for the future payment of money, until an appropriation sufficient to meet such contract, or pay such liability, shall have first been made by law." Mr. Chairman, let us consider the effect of this section upon existing law. MR. COX. I desire to ask the gentleman whether what he has just read is not substantially the law now. My remarks will soon answer the gentleman. In 1870, in order to prevent the extravagant use of the public money, Congress passed a law restricting the expenditures for any one year to the appropriations made for that year; that is, if the appropriations made for the year were not sufficient, a deficiency must be asked for. Unexpended balances remaining from previous years could not be applied to meet deficiencies. This was a wise provision. Then it was found that there was a tendency to incur obligations by making contracts, such as for the rent of buildings, the lease extending over a series of years ahead. Thus obligations were incurred for which no appropriations of money had been made. To check that tendency, Section 3679 of the Revised Statutes was enacted, in these words: "No department of the government shall expend, in any one 1 Namely, the new Legislative Bill, mentioned in the introductory note. fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the government in any contract for the future payment of money in excess of such appropriations." Now, in pari materia, as part of the same general prohibition, gentlemen will find, in Section 3732, this enactment: "No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law, or is under an appropriation adequate to its fulfilment, except-" and here is an important exception that gentlemen appear to have overlooked, and it answers the question of the gentleman from New York-"except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation, which, however, shall not exceed the necessities of the current year." Perhaps this section may throw a little sidelight on another bill which is shortly to be before us, in regard to feeding, clothing, and transporting the army. Under the laws as they now stand, if Congress neglects to pass the regular appropriation bills, or if the appropriations run out, still the army is to be fed, and not starved; clothed, and not left naked; transported to points of danger, and not left idle and useless. So also with the navy. But the pending bill contains a section which for one year nullifies Section 3732, for it makes no exception for the army and navy. MR. CARLISLE. Did not the act of 1870 repeal all that? MR. CARLISLE. Why not? Because of the exception which I have just read with reference to the army and the navy, which has never been construed as repealed. MR. CARLISLE. You have read the exceptions in the act of 1861; but the act of 1870, a later statute, contained no exceptions whatever. I have read from the Revised Statutes now in force two exceptions which must be construed together; one does not repeal the other. MR. CARLISLE. How did that provision get there? It is enough for me to know that this is the law. Both sections have been adopted by Congress in the revision of 1874. But this is not all. Besides nullifying the exceptions of Sec tion 3732 for the coming year, there is imported into this second section of the bill a new term. Before this, outside of these exceptions, a department could not make a contract, a written. contract, binding the government to pay money for an object for which no appropriation had been made. That was wise and judicious, for it prevented the departments from entering into large schemes that bound the government in advance of the action of Congress. But here is another expression not known in our existing statutes: "No department or officer of the government shall . . . . make any contract or incur any liability." Here is a provision which is much broader than any that can be found in the statutes, as every lawyer will concede. "Incur any liability." What does that mean? Suppose the President of the United States should think it important to send a minister extraordinary to some foreign court, being authorized thereto by the Constitution, and in an emergeney should send him. Would he incur a liability? Certainly. Suppose he had been ordered by Congress to do it; suppose it was made mandatory under the law, but there happened to be no special appropriation for it, and he should make the appointment, would he incur a liability for which an appropriation had not first been made? Suppose it should so happen that a new judicial district had been created by act of Congress, and the President had been ordered by law to appoint a judge, but no appropriation had been made for the salary of the judge. The President in appointing that judge according to law incurs a liability for the government to pay the salary. In short, any executive act, which by law he is commanded to perform, he is here forbidden to perform during the coming year, because in doing so he incurs a liability for which an appropriation has not been specially made in advance. The object of this legislation is plain. During the coming year there is to be an election for members of Congress in the State of California, and one in the Westchester district of New York to fill a vacancy; and this legislation is levelled at these elections, so that neither the courts nor the marshals shall appoint deputy marshals to act as official witnesses, or to keep the peace at those elections, in order that the United States may be properly and lawfully present at the creation of its own legislators. This legislation is an attempt to prevent the United States' being present at those two elections which are to be held |